Brell v. Brell

• Decision Date: 25 June 1923
• Docket Number: 15.
• Citation: 122 A. 635,143 Md. 443
• Parties: BRELL v. BRELL.
• Court: Maryland Court of Appeals

122 A. 635

143 Md. 443

BRELL v. BRELL.

No. 15.

Court of Appeals of Maryland

June 25, 1923

Appeal from Circuit Court of Baltimore City; Carroll T. Bond, Judge.

"To be officially reported."

Bill by Margaret Brell against John Brell. Judgment for plaintiff and defendant appeals. Reversed and remanded, with directions.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and OFFUTT, JJ.

Jerry L. Smith, of Annapolis, and Philip B. Perlman, of Baltimore (Ogle Marbury, of Baltimore, on the brief), for appellant.

Charles Jackson, of Baltimore (Arthur R. Padgett, of Baltimore, on the brief), for appellee.

THOMAS J.

The bill of complaint in this case which was filed in the circuit court of Baltimore city, on August 8, 1922, alleges that the plaintiff, Margaret Brell, and the defendant, John Brell, her husband, were the owners as tenants by the entireties of a small farm in Anne Arundel county, Md., which they sold on the 21st of October, 1918, for the sum of $5,800, $1,800 of which was paid to the defendant, and a mortgage executed to him and the plaintiff for the balance; that in 1922 the plaintiff was induced by her said husband to execute a release or assignment of said mortgage, upon his promise that the proceeds would be invested or deposited in bank in their joint names, but that she has "now discovered" that the defendant purchased and paid for, out of the proceeds of said farm, a property known as No. 1035 Hollins street, in Baltimore city, and has taken the title to the same in his own name; that ever since the defendant received the proceeds of said mortgage he has treated the plaintiff, who has been an invalid for the past five years, unable to take care of herself or to move from place to place without assistance with great cruelty and indifference, and thereby compelled her to leave him and take up her residence with her children and that he intends to defraud and deprive her of her share of the said sum of $5,800, one-half of which he should be required to pay to her; that the defendant conducts at No. 1035 Hollins street a hardware business, in which he used a part of the proceeds of said farm to purchase his stock of goods, and that he also deposited in the Calvert Bank, in Baltimore city, in his own name in the savings department of said bank the sum of $2,000, and the further sum of $200 in a checking account, both of which sums are part of the proceeds of said farm; that at the time of the purchase of the Hollins street property the defendant stated to the plaintiff that the title to the same would be taken in their names, and that at the time he commenced said business it was understood and agreed between them that it was to be their "joint business"; that it was also understood and agreed that the money deposited in the Calvert Bank was to be deposited in their joint names; and that the plaintiff believes and avers that the defendant is about to sell the Hollins street property and said business, and to withdraw the deposits in said bank for the purpose of defrauding her.

The prayers of the bill were: (1) That John Brell be enjoined from drawing any part of the money in said bank, from disposing of said property, and from selling or disposing of the stock of goods in said property "in bulk." (2) That the Calvert Bank be enjoined from paying to the defendant any part of the money deposited in said bank. (3) For a decree requiring the defendant to pay to the plaintiff a sum equal to one-half of the proceeds of said farm, and for the appointment of a receiver to take charge of said property, business, and money, to the end that the same might be divided between the plaintiff and the defendant.

The evidence shows that the plaintiff, who was a widow with three young children, and whose name was Margaret Fisher, had known the defendant in Germany for about a year before they came to this country to live. The defendant came to America in 1889, bringing with him the plaintiff and her children, and he and the plaintiff have lived here as man and wife ever since. He secured work as a stevedore and purchased a home at Locust Point. After living at Locust Point about 5 or 6 years he sold his house, and they moved to Anne Arundel county, where he rented the little farm, containing about 21 acres of land, which he afterwards purchased in 1895 and caused the deed to be made to "John Brell and Margaret Brell, his wife." The evidence also shows that the plaintiff had no means. and that the defendant paid for the farm, and he states in his answer that the reason he had the deed made to himself and the plaintiff was that he wanted to preserve the property as a home. The evidence further shows that the plaintiff's health became very bad (she stating in her testimony that she told the defendant that she was no longer well enough to get along on the farm, and that the best thing to do would be to sell it), and that they determined to sell the farm, and sold it in 1918 for $5,800; $1,800 of the purchase price was paid to the defendant, and the purchaser executed a mortgage to him and the plaintiff for the balance of $4,000.

After the sale of the farm the defendant and the plaintiff went to Baltimore to live. The defendant purchased in his own name the property No. 1035 Hollins street, where he conducted a hardware business on the first floor, and he and the plaintiff made their home in the upper stories of the building. The plaintiff's health became so bad that she could not take a bath, fix her hair, or go to bed without assistance, and had to be carried up and down stairs by the defendant, and defendant had to employ a woman to prepare their meals and to take care of the plaintiff and their home. The plaintiff became dissatisfied because, she says, she was not receiving all the attention she should have, and decided to go to her son's home to live, and the defendant entered into an agreement to pay her son and his wife $10 per week for the plaintiff's board and the care and attention she required, and also to pay for any medical attention she might require.

Two hundred dollars of the first payment on the farm was paid to the broker who secured the purchaser, and in April, 1922, the defendant and the plaintiff were compelled to sell the mortgage of $4,000 for $3,350 in order to raise $950 which he had borrowed from one of the plaintiff's sons, who was pressing him for payment. At the time the bill was filed there was deposited in the Calvert Bank, in the name of the defendant, $2,017.20 in the savings department and $337.96 in a checking account.

The evidence further shows that the plaintiff united in the sale of the farm and mortgage voluntarily for the purposes we have stated, that she knew that the money was paid to the defendant, and that he paid out of the amount he received from the mortgage his indebtedness to her son to the amount of $950, and there is not the slightest evidence in the case to support the averments of the bill that the farm was sold and the mortgage assigned with the understanding between the plaintiff and the...